The Possibility of President Trump Not Finishing His Term
by Mary W Maxwell, LLB
I wish to speak for the Constitution. I actually want to speak AS the constitution, on the matter that is being discussed this week regarding US President Trump.
The Constitution, as written in 1787, plus the ten amendments in the Bill of Rights, and additional amendments, contain all that we need for smooth government. So, there need not be any panic today over what happened yesterday, January 6, 2021.
The official, proper players in the Constitution are: the Congress, the president, the US Supreme Court, and the states. Each of those has an Article devoted to it, with Article I specifying the job of the legislature, that is, both houses of Congress.
A fifth official player is the people, the citizenry. They come into the Constitution in the Bill of Rights and they are the power that underpins Congress. Congress is “the people.”
Note: Political parties -- Republican, Democrat, or other -- do not appear in the Constitution; they are but private associations of people.
Math and Balance
The Framers of the Constitution had a mathematical view of power. They realistically anticipated power grabs. Hence, they made sure each branch had a way to restrain the other branches.
Thus, if the Supreme Court sees the legislature passing unconstitutional laws, it can in effect void those laws. If the Supreme Court justices act wrongly, the Congress can impeach them. (In 1969, Justice Abe Fortas resigned under threat of impeachment.)
To oust bad Congresspersons or a bad president, the main check is via the ballot box. However, Congress can oust a member of its own chamber by a 2/3 vote. (In 2002, Rep James Traficant was expelled from the House by a 420-to-1 vote.)
A president can be removed by Congress – which, remember, is “the people.” He can be “impeached”-- that word merely means accused -- by The House of Representatives and convicted by a 2/3rd majority of the Senate. Presidents Bill Clinton and Trump were both impeached by the House but not convicted by the Senate.
In the 233 years from 1787 to the present, Congress passed several laws, also known as statutes, to put more flesh on the way the republic could survive. One type of law they could pass would be to restrain the enormous power of monopolistic corporations. They did this in the Sherman Ant-Trust Act of 1890.
They could also pass a law to restrain foreign involvement in the US government. In September 2018, President Trump wrote an Executive Order about that, and subsequently Congress enacted the relevant provisions – as no president can make law via executive orders. As stated in Article I, section 8 clause 18:
“The Congress shall have Power to ... make all laws which shall be necessary and proper for carrying into Execution ... all... Powers vested by this Constitution in the Government of the United States or any Department thereof.”
Impeaching President Trump Today
Congress can impeach President Donald Trump now, even though he has only 13 more days in office. The House would have to write up one or more “Articles of Impeachment.” If a majority of the 435 members vote Yes, the case goes to the Senate.
Article II, section 4, says “The President, Vice President, and all Civil Officers of the United States ... shall be removed from office on impeachment for and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”
As recently as January 2020, the House impeached Trump. When it got to the Senate, the Senate took a “vote on procedure” as to whether evidence would be listened to. They voted No. On the vote to convict, they voted No.
There is no due process and the crimes do not have to be crimes on the books. It is a political affair.
Another way that a president might get “removed,” is for Congress or other persons to pressure him to resign. This is what happened to Richard Nixon in 1974.
The 25th Amendment
What if a president has not done anything wrong but has become mentally ill or otherwise incapacitated? Until 1967 there was no constitutional provision. In that year the 25th Amendment was ratified. It provides for a temporary transfer of power from the President to the vice president. (Reagan in 1985 and George W Bush in 2002 used it for a short-term medical absence.)
The 25th Amendment also provides for involuntary transfer of power, as follows:
“Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide [Congress hasn’t done so], transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
“Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.
Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.
“If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office”.
Note: That provision has never been used.
Bringing Criminal Charges against a President
No US citizen, including a president, is above the law. Criminal charges may be brought. It is, at present, the “policy” of the Department of Justice to refrain from indicting a president. But policy is not binding.
States can also charge a president with crime. New York’s Attorney General is currently investigating President Trump for possible tax or other crime. Note, however, that indicting or even convicting a president of a crime does not entail his removal from office.
Any of the legal methods of trying to remove a president from office can be misused. That is, they can be employed as a form of harassment or as a power grab. The Constitution’s checks and balances does not adequately prevent that. However, the people can weigh in, in whatever manner they wish if they disapprove of an attempt to remove a president.
The people always have ultimate say.
Commentary by Mary Maxwell (not by the Founding Fathers, although She Never Strays Far)
Nancy Pelosi, Speaker of the House, has just announced, on January 7, 2021 at around 4pm, that she wants to use impeachment and/or the 25th Amendment to remove President Trump.
It appears to me that the most efficient method would be impeachment. The four-day delay in the 25th amendment would mean a 9-day (or less) presidency of Mike Pence. In any case, Pelosi does not have authority to start the 25th Amendment procedure, but she does for impeachment.
I might mention that if they impeached both Trump and Pence simultaneously, the Speaker of the House would immediately become President of the United States. Also I forgot to say that President Trump may decide to resign, perhaps in order to get a pardon, from Pence. (Nixon got one from Gerald Ford.)
The Fraudulent Election
As far as I can tell, from reading Sidney Powell's excellent evidence, Trump did win the 2020 election. That is, he won enough votes to have achieved at least the minimum number of Electoral College votes (270) on November 3,2020, if the states had declared the numbers honestly.
I believe there was massive cheating, for which particular “software” was the key element. (I also think that this happens routinely in US elections – see the 1992 book by Jim Collier entitled Votescam.)
It is clear that this information is being suppressed. Meanwhile, the media have gone to great lengths to make sure the public gets the impression that Trump’s claims of victory are false.
Thus, someone who arranged the cheating in the first place, plus the media, are tied into electoral fraud -- which is a federal crime calling for penalty of up to 5 years imprisonment.
Now I ask: How many of the 535 Congresspersons are also indictable for this same crime, as accomplices to the mind-blowing activity that began at 1pm on January 6, 2021 in the Hall of Congress? (I am not referring to the crowd’s behavior, which began later.) They all – with a few exceptions – made mincemeat of the law.
This took the form of legislators misstating – loudly, vociferously – the law that is codified at 3 USC 15. It says that when the ballots are opened in the presence of the President of the Senate, that person can reject any that are not authentic.
Surely that means any that were left unsigned by the Elector, or any that had a signature such as “Jesus Christ.” Or any that purported to come from a state called “Ruritania.” Such, being not authentic, could be thrown out on the authority of Pence without taking a vote.
No such “doozies” did appear on January 6, so that part of the ceremony was over. The next part was for Pence to ask if there were objections. He properly did so, and a few “brave” (what an awful word) Reps and Senators came forward. At this stage they could object to something substantive, such as the candidate on the ballot is less than 35 years of age, hence ineligible for the presidency. They could also have discussed “software problems” – see below.
Pence was required to deal alphabetically, by the state from which the Electors had done their December 14th balloting. Hence, he took care of Alabama and Alaska, to which there were no objections. Next was Arizona to which at least one senator and one rep (as is required by law) gave an objection.
Around that time, the break-in by rioters began, so the task was postponed. At 8pm, Congress reconvened and finished all the states. Various objections were raised, and this meant each chamber had to vote on whether they agreed with the objection. No objection garnered the needed majority vote -- in either chamber.
Does Trump Deserve Removal from Office?
Here I will hold forth only on the question of Trump’s behavior in relation to the rioter’s breaching the Capitol Building. I am not well placed to comment as I have so far not been able to find a video of him egging the people on. Some say he did, some say he didn’t. So I can only offer a hypothetical “ruling.”
To repeat, I do not know if he instructed his supporters to do anything violent or illegal. If he did, punishment would be appropriate. If he didn’t, the whole harass-the-president thing is a disgrace. And for people to say that a crowd should not rally is the heresy of the century!!!
However, as I said in yesterday’s article at GumshoeNews.com, I personally hold it against Trump that he did not get the word out about the software, and did not get the word out about Mike Flynn’s alleged arrest of CIA Director Gina Haspel. We need to know. How could it possibly be a secret? Who does he think he is?
To me, he is the guy who can’t bother to scratch the names of Leonard Peltier and Julian Assange on his pardon pad, but can set free a group of war criminals.
I’ve also stated that I’d like to punish Trump for not punishing Barr. A sin of omission, so to speak.
Finally, the Constitution’s checks and balances have not been repealed. The Courts, which have been playing possum on the major issue of evidence of fraud, can still do the right thing.
Mary W Maxwell, PhD, LLB, lives in New Hampshire. She is the author of Grass Court: How To Use Law To Deal with the Pandemic, and many other books. She writes weekly for GumshoeNews.com in Melbourne.
